The legal position of least abled persons : a holistic approach

Abstract

The term 'least abled person' is best understood and appreciated when categorised and not defined. The introduction of this thesis in fact outlines that certain groups of persons are considered as least abled, however not all for the same reasons. Persons can be least abled owing to either exposure to: non-legal recognition; scarce or minimum legal rights; or social discrimination, which can render them vulnerable. The classification is divided into three categories, which shall be expounded upon in the subsequent chapters: least abled by birth, least abled by status and least abled by society. The first Chapter discusses a brief overview of the classification and what is included under the three categories. It also states the reasons why specific persons have been incorporated under each class. The second part of the Chapter deals with Roman Law, where an overview of persons falling under the alienijuris and suijuris categories is given. Bearing in mind that this thesis is a holistic approach, the subsequent chapters contain a general overview of the legal position of such persons including any social problems and discrimination in their regard, uniting all branches of law, domestic and comparative, such as Civil, Criminal, Commercial, European and Private International Law under one thesis. Chapter 2 deals with the first category - least abled by birth. It briefly discusses interdiction and incapacitation, outlining the relevant points under our law. An ethical and legal debate with regards to the pre-birth situation is discussed, identifying the status and the legal position of the unborn child in Malta, as well as a brief analysis vis-a-vis the issue of abortion. The legal position of disabled persons is discussed mainly through a global comparison of disability discrimination laws, emphasising the different legal approaches taken by diverse countries. Mental disorder and insanityare next discussed, outlining mainly the position under Criminal Law. The position of congenital deaf-mutes is also considered from the Criminal and Notarial legal point of view. The last group of persons, which this Chapter analyses, are illegitimate children, bringing out their current legal position under the Civil Code. Chapter 3 deals with the second category - least abled by status. The status of minors is dealt with under Civil, Criminal and Commercial law. Comparative laws are also discussed together with certain International Conventions. Religious persons, who have taken solemn vows, are the final category to be dealt with under this Chapter. Chapter 4 deals with the final category - least abled by society. This is discussed from a legal and sociological point of view and focuses on vulnerability, stigma and social discrimination. The social concepts and legal position of: same-sex marriages and persons with HIV/ AIDS are examined. The concept of natural law is also reviewed when dealing with the notion of same-sex marriages. With victims of domestic violence, the need for legal reforms is also dealt with. A propos the elderly, their vulnerability is the main focus, and a brief sociological discussion examines their problems. The final Chapter concerns the problems found under Private International Law alias 'Conflict of Laws.' A brief outline of the notion of discrimination within the European Law context, with regards to certain categories of persons dealt with in this thesis, is also discussed. The Conclusion sums up the three categories and looks at the fact that they can overlap at times. It also looks at the new legal incentives being taken in Malta at present, as well as proposing a few reforms and puts forward a new theory to combat the majority of the problems discussed in this thesis.